"Betrayed the Department of Justice"?

It's one thing for a President to fire someone who serves at his pleasure but refuses to back his play. It's another thing to use the language of treason in describing her conduct.

Of course, it's easier for me to make this point than for many on the left, given how readily they've resorted to the language of treason aimed at Trump himself. That doesn't make it less wrong in this case.

33 comments:

It's not a charge of treason, it's the language of treason. To say that she has "betrayed" her department -- which is presumably to be taken as a betrayal of at least part of her government -- is to talk about her as if she were a traitor.

But she's not. She's a lawyer who had a different reading of the law, and refused for reasons of personal conscience to do what she was ordered to do. I understand replacing her. I object to slandering her.

He betrayed his team. She betrayed her canasta partners. He betrayed his wife.

The word gets tossed around. Betraying a department isn't the language of treason. It's an expression of an opinion, just a bit more blunt than her expressing her opinion: I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right.

Her personal value set opinion of "what is right" and her view of "justice," notice, not her legal opinion. Her legal opinion was separately expressed in her letter.

The one is not appropriate in a lawyer taking an official position in the name of the government or any other organization that employs her; only the other is. The one is, indeed, a betrayal of her responsibility and so of the Department. But it's not treason, or the language of it except by the coincidence of spelling and syllabary.

She took an oath to uphold and defend the constitution, and to discharge the office appointed to. I think betrayed is the correct term. The DoJ counsel found it to be legal. Barring taking it to court to determine if they're not correct, she's obligated to support the policy and execute it's provisions.

If she objects, do the right thing and resign.

Putting herself above the three other branches of government is a betrayal of the constitution, and that's what she's done by essentially attempting to 'block' the EO. No one elected her. If she was so sure it would be found unconstitutional, she should have taken it to court and let the judges do their job. Her refusal to do so is almost an admission that it likely is constitutional. Given the lack of any real argument against it in her statement, it's pretty clear she's strictly playing politics, and that should get you fired from DoJ.

Per the NRO: "To make an analogy, there are many federal judges who oppose abortion. They apply Roe v. Wade even though they disagree with it intensely, because their duty is to obey superior courts. As every official in the Justice Department knows, if one disagrees with the law one is called upon to apply, or the policy one is bound to enforce, one is free to resign. Staying on while undermining government policy is not an act of courage. It is an act of sabotage."

Betrayal is the correct word. What's more, she didn't offer a legal defense of her insubordination, which was politics, pure and simple.

More many years I've been appalled at how few apparatchiks understand that their only honorable course of action is to resign. Not hang around now that the atmosphere is uncongenial, not slow-walk their tasks, not fume in furious silence over the lies they believe their superiors to be telling: resign. Give up the agreeable job that's important to their convictions or their careers. They serve at the pleasure of a man who serves at the pleasure of the voters. They have no right to persist in office, no matter how much good they imagine they have a chance to do.

I stand by what I said. Jeff Sessions, who will presumably soon occupy the spot she was acting to fulfill, questioned her at her appointment hearing before the Senate.

He specifically told her that her job was going to be to stand up to the President when he was wrong as a point of law.

Now of course he thought she'd be defying Obama, not Donald Trump. All the same, this is one of the jobs she signed up for: telling the President no. It's fine that he replaced her as a result, but it's not fine to describe her as having betrayed her department. She did her job, at the cost of her job, and that's worth some respect.

[Sessions:] "Do you think the attorney general has a responsibility to say no to the president if he asks for something that's improper?"

Yates...said, "Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president."

But what she did that got her fired was to stand up to the President on a point of politics. The law was secondary. Perhaps Yates also testified falsely under oath when she chose to omit her view that politics also should play a role in her strictly legal, strictly apolitical position.

There's some essential confusion here. There is no conflict between one's duty to stand up to a superior and say "no," vs. his duty to resign if he doesn't carry the day in that argument. The duty to say "no" out loud and courageously does not come with an automatic lifetime tenure in a job that comes with a federal paycheck and benefits.

In any case, as Eric and I have both noted, Yates did not offer a legal argument, only a political dispute--and an AG has neither the duty nor the right to dispute a President's order over a disagreement about policy.

Trum decides what happens, not the people who voted for him. I told them they wouldn't be able to do jack once they put into power this god emperor of the Alt Right. One religion from the LEft, replaced by another religious cult on the Alt Right, makes things equal and balanced. Fair and balanced.

Those who put their faith and trust in mankind, are doomed. In this case, it just so happens that both sides are human, so I have no preference either way.

In any case, as Eric and I have both noted, Yates did not offer a legal argument, only a political dispute--and an AG has neither the duty nor the right to dispute a President's order over a disagreement about policy.

Bingo!

Sorry, but I'm pretty sure the reason she didn't resign (which would have been the honorable thing to do) is that she wanted to force him to fire her so she'd look more like a victim... which is like crack cocaine to the far Left. It drives them nuts.

If even Cass is against me on expressing courtesy to a defeated foe, I'm probably wrong.

Nevertheless, I'm not much for bowing to peer pressure. I don't care that she picked the more dramatic path much. What I really do care about is that she held to her conscience. I disagree with her, but I respect her devotion to moral principles.

Not much of a conscience if it rests easy with violations of her oath of office, as Tex has pointed out.

It also turns out her own Office of Legal Council had vetted the EO (never mind that the NLMSM is blatting on about uncoordinated EOs) and found it entirely legal and constitutional. Her secondary line about the EO's illegality is just BS.

"What I really do care about is that she held to her conscience. I disagree with her, but I respect her devotion to moral principles."

Perhaps you're just more generous than are we in ascribing to her principles the adjective 'moral'. 'One set of rules for thee and a different one for me' is hardly moral or just. She worked through almost the entire Obama administration at DOJ and never seemed to find any of his excesses out of order or worthy of resistance. All that despite the fact that he had more losses at the Supreme Court than any other president by far (meaning she seemed perfectly ok with illegality and unconstitutionality then).

Yeah, I'm not feeling that generous about interpreting her actions as being true to her conscience, either. I'll grant that provoking your boss to fire you is better than knuckling under when you believe he's ordering you to do something wrong. That looks a little less flattering when you consider, as Doug says, the pile of orders that she was cheerfully willing to knuckle under to when her boss happened to agree with her politically, which suggests that she doesn't distinguish means from ends. Her "conscience" appears to be limited to "does this accord with my public policy goals, which I've elevated to the status of the ultimate right and wrong"--particularly treacherous ground for a lawyer, to say nothing of a lawyer wielding the power of the state. But also, she knew her job was going to end in a week or two whatever happened, so this smells of grandstanding and springboarding at a time when the job loss cost her practically nothing.

I think this is one of the few public-office moral dilemmas that has a fairly simple and well-known solution. It shouldn't leave anyone perplexed; it's a question of facing the sometimes considerable cost of doing what's obviously right. What's obviously right is to let your boss know that you feel so strongly about the moral principle that you'll resign rather than go along, and then mean it, and do it. The only gray area left is the degree to which you soften the resignation, maybe delay it a bit while you work hard to make the transition smooth. If he just asked you to incarcerate all the Jews, you probably skip that part. If he only disagrees with you about an issue of disputed law, maybe you try to do what's best for the continuity of the institution. There's also the question of how publicly you announce the source of the disagreement: if you think it's of paramount importance to stop him, you shout it from the rooftops. Otherwise you might stick to a tight script of "We had irreconcilable differences" or even "I wanted to spend more time with my family."

Alan Dershowitz, who is in considerable sympathy with Yates politically, said the proper thing would have been for her to make a careful analysis of the parts of the order that she believed were bad policy, which parts possibly conflicted with a statute, and which arguably raised constitutional issues. She skipped all that and tarred the whole thing with the same brush, which was political, as well as being an abdication of her specific duties. In other words, she has only one excuse for contending publicly with her boss/client on this issue, which is her assigned role as the person who should analyze it legally and with care--but she jettisoned that part in her zeal to grab the spotlight and score a political point against a foe. That's not virtue, it's virtue-signaling.

It's a fine thing to express courtesy to a defeated foe. There's no reason to confuse that with obscuring an ethical issue. If she had resigned, the President could have extended courtesy to her by graciously announcing that they had a disagreement on principle, or by any of a number of other ways of emphasizing that there was no question of incompetence or turpitude. In this case, sadly, she chose to proceed in a way that encourages a conclusion of turpitude, or at the very least, a partisan fervor that has left her ethics in a severe tangle. Or it may be that she's simply ignorant of old-fashioned mores, having been raised in Alinsky tactics instead, if not the brand of feminism that elevates feelings above all else. I'd be surprised if she understands what she did wrong. She probably thinks everyone's just being mean to her, because her opponents are mean patriarchs, and that's all the more reason to combat them. Too bad she doesn't have a Dutch uncle/aunt. But she's no spring chicken; she should have learned all this by now.

There are different types of relationships between human beings. Courtesy to a defeated foe strikes me as the right standard between peers. But this isn't a "between peers" situation - it's a situation where one person, acting within the course and scope of her employment (and necessarily, acting as a subordinate agent of the Executive Branch), unilaterally decided to violate the terms of her employment.

Had she said, "Adhering to my personal values has come into conflict with performing my official duties. Therefore, I must resign.", I would have been OK with that ... to a point. This is what James Webb did when he felt he could not in good conscience defend administration policy as SecNav. He did NOT say, "I refuse to carry out the orders of my direct superiors."

There are times, when dealing with employees, when one has to reprimand or even fire them. Certainly Marines aren't "courteous" when a recruit or even often a more senior Marine screws up. So I don't think courtesy really comes into this scenario.

One of the things the Spousal One has told me over the years wrt to Marine culture is that junior Marines are more forthright in questioning their superiors' plans than is customary in other services. He believes this forthrightness is ONLY possible because everyone understands that questions are not only allowed but expected... right up until the moment the order is given.

At that point, everyone also understands that even critics of the order will faithfully execute it to the best of their ability. The two things - the freedom to express dissent/criticism, and the trust that subordinates (having expressed dissent) will fall in line once the order is given - are inextricably intertwined.

Anywho, just my 2 cents. Like Grim, I do highly value courtesy. I just think that other considerations override courtesy here. I would not have used the word "betrayal", so he's right that it's strong language. But I also believe that senior personnel CANNOT openly defy the chain of command. That's destructive, especially in the current atmosphere of sometimes violent protests and civil disorder.

I think it's the tension between values we're arguing about, here, and which should dominate, in which situations.

Just saw this and thought you might want to write about it. You have often likened my general value system to Kantian ethics. I can't really comment on that (not having read enough of Kant's work), but suspect you're mostly referring to his best known theory of the categorical imperative:

"Act only according to that maxim whereby you can, at the same time, will that it should become a universal law."

While I believe this framework is invaluable for detecting/discounting bias and self-interest when dealing with others, I would rarely (if ever) be willing to agree to not act in a given way unless I were willing to impose a universal law requiring others to act that way. This is a more extreme framing of the age old question every mother asks her children as a teaching tool:

"What kind of world would it be if *everyone* acted that way (or if someone did that to you?)"

There's a real tension between the usefulness of moral/ethical/legal standards (which are rarely truly universal) and the freedom to respond fluidly to changing circumstances (as you often argue, to treat different situations, differently).

At any rate, I often think people become terribly confused (and here, I'm referring to Kant, not you) between standards appropriate between individuals and standards needed to form institutions and functional societies. They're different frameworks that require different rules.

The idea that standards appropriate between individuals (who may have little/no duty to each other) automagically "scale" seamlessly to the state, local, or national level seems absurd to me - as does Kant's theorizing about the conditions needed to bring about world peace. In many ways, this is a knowledge problem (I can know more about an individual I'm dealing with than I can ever know about "everyone in the world").

I was just writing about a similar approach in AVI's comment section: the difference between codes of conduct for small, intimate groups and for large groups including strangers. The "what if everyone did it" rule, which is close to the Golden Rule, should take into account that not all relationships involve the same level of intimacy or the same availability of information or trust. My willingness to share the last crust of bread to a guest under my roof when we're both in danger of starving is not the same dilemma as wondering if it's OK for me to eat before I've ensured that 7 billion other people on Earth have enough food at this moment.

In Yates's case, though, I'm applying the same standard to her behavior that an intimate and trusted colleague or mentor ought to have applied, if Yates wants to be considered a fully adult member of society entrusted with a lot of responsibility and dignity, as opposed to a member of a victim class. She's not a waif. She's not setting a good example for the young people under her authority. She's not reflecting credit on her party.

I think part of what offends me about Yates' behavior is these two things:

1. I very much doubt she would grant similar leeway to a senior official opposing Obama's policies (or someone she disagreed with). IOW, she's endorsing outcome-based ethics - otherwise known as, "my desired outcome justifies pretty much any means, but when it comes to your desired outcomes, the rules take precedence).

I mean, exactly where's the historical precedent for what she tried to do? Would she have upheld the "right" of a senior official under Obama to openly defy his authority based on nothing more than an unsupported assertion of illegality (that was undermined by that person's own agency previously deciding the order in question *was* entirely legal)?

2. How can institutions function if any member, at any time, can openly defy authority with no consequences? The very act of becoming a public official is an acknowledgment that you're not acting only for yourself. You're acting on behalf of the organization. If you can't deal with that, don't take the job.

I read a few sentences of that piece this morning, before you mentioned it, because I was wondering if it was good enough to bring to your attention. I'm glad you found it on your own, though I didn't get deep enough into it to judge it fairly.

I don't think that Yates' actions were much different from resigning, as she clearly knew that taking this stand would lead to her being fired. What I like about what she did is exactly what everyone else doesn't like: the fact that she wasn't ruling on the law, or the Constitutionality, but on her sense of the wisdom and justice of it.

That's why it's fine that she was fired: I don't object to firing her because it's clear she was refusing to do her job. But it's also why this strikes me as a specifically moral stance. I admire those who stand up for their moral principles in spite of personal consequences.

And of course there were consequences, although I expect she'll land on her feet. But the reason she'll land on her feet is just because there are so many people who agree with her. In a representative democracy like our own, that's a significant fact. She represents a consensus position that is widely held -- almost as widely held as our own. She's willing to suffer a personal price to hold to her moral views, and she'll be OK because those views are the views of tens of millions.

Thanks for the explanation here - it helps me understand your position better:

I don't object to firing her because it's clear she was refusing to do her job. But it's also why this strikes me as a specifically moral stance. I admire those who stand up for their moral principles in spite of personal consequences.

You and I disagree about the best way to stand up for moral principles. In my mind, if you are acting alone (and not taking money to represent another person or entity) you have more latitude. So, for instance, a public defender taking taxpayer money to defend a client he views as morally reprehensible is justified in going to his boss and saying, "Representing you violates my moral principles, and if no one will let me recuse myself (i.e., "get out of the way") then I must resign."

He is NOT justified in saying in public - without quitting!, "My client is a scum sucking, soulless POS, and I defiantly *refuse* to defend him in court. SO THERE!"

You could turn this one around - make the lawyer a prosecutor who's asked to prosecute using a legal theory he personally believes is incorrect (but has been approved by his office previously). In my book, he could tell his boss, "I believe this prosecution is contrary to law, and I won't use it. If you won't relent, I'll have to resign."

Or he could just resign.

What he can't do (in my opinion) is publicly grandstand: not do his job, release a statement to the press - while accepting pay from his employer - essentially elevating his personal opinion over the legal opinion of the office he gets paid to represent, and force his office to fire him. I think that's wrong and shameful on many, many levels.

You can stand up in a way that is honorable, but I think her actions were dishonorable.

What I like about what she did is exactly what everyone else doesn't like: the fact that she wasn't ruling on the law, or the Constitutionality, but on her sense of the wisdom and justice of it.

Except that she was doing no such thing; her claimed sense of the wisdom and justice of the law was nothing more than a tool which she wielded in two ways. One was to elevate her personal definitions of what was to her a purely political question, not a moral one--wisdom and justice--above the wisdom and justice embodied in her office and given concrete effect by her own OLC in the instant case. This is arrogance, not morality given her motive, which is the second way in which she was wielding her tool: to grind an axe against a hated politician and political grouping that had stolen the election from her favored ones through their deceit, racism, xenophobia, misogyny, and evil bible-toting and gun-clinging ways. Stolen by the millions of irredeemably deplorable.

There's nothing remotely moral about her claim or her pretended stance.

Do I know that she was behaving utterly immorally and that you're wrong about her morality? No more than you know she behaved completely morally. Perhaps you'll begin to see the price of the constant dishonesty and considered divisiveness issuing these last several years from her confreres, to whom she made herself so close. They've rendered themselves and those who knowingly associate with them unbelievable.

What I like about what she did is exactly what everyone else doesn't like: the fact that she wasn't ruling on the law, or the Constitutionality, but on her sense of the wisdom and justice of it.

As long as she persists in her job instead of resigning, that's exactly what she's not ethically free to do. Her sworn duty while she holds the office of AG is to advise on the law, not to set the law aside and, by defying the direct orders of her client and boss, substitute her own personal judgment of the wisdom or justice of the President's policy decisions. That's a luxury she can reclaim only by resigning and reverting to a private citizen, thereby relinquishing the power of an AG. Then, if she wants to impose her personal judgment on the rest of us, she can run for office herself. She doesn't get to keep the power of an appointed position AND the freedom to follow her own view of the wisest and most just public policy. There's a reason AGs don't get lifetime tenure; they're not supposed to be free to tell the voters' representative to take a hike.

Magnanimity is great, but not at the cost of losing sight of right and wrong. If we can see that wrong was done and still be magnanimous, wonderful. We're not entitled to whitewash a serious error to get there.

Exactly, Tex. In my simple minded terms- this is not just a question of whether or not she had a responsibility to her JOB, she took an OATH, to uphold and defend the Constitution and thereby to the people of this nation. She violated that oath. No virtue there. I don't see a way around that.

How many remember when we had much the same discussion when Kim Davis refused to issue marriage licenses to gay couples? In that case she was refusing a legal instruction to issue them because she had a personal moral objection.

Now I don't know how to find a post from that long ago, but my vague memory tells me that (for the most part) the Hall also agreed then that she should resign if her moral objection led her to not issue the licenses. But I trust my memory very little. Does anyone else know how that discussion shook out?

But in any event, would you call Kim Davis' refusal a "betrayal"? I'm mostly curious here.

I think Kim Davis was trying to do the same thing as Yates in some ways: she wanted to keep her official position (and presumably paycheck) while defying higher authorities. She was an elected official, however, and it was less clear that the people issuing new orders to her were the higher authorities she was directly obligated to. For the situations to be parallel, she'd have had to be the appointed official of an elected person, and have been defying the orders of the very person at whose pleasure she had agreed to serve.

The situations were parallel in this sense, however: she was not only entitled but obligated to put her personal ethics above her job duties, and if they couldn't be squared, she couldn't carry out the job duties. She probably should have resigned; once the Supreme Court had ruled, she didn't have the excuse of waiting until the issue ran up through the courts, and there wasn't any real question of whether the new directive she was operating under was in full force and effect. I can't remember whether she offered the alternative of letting clerks under her authority issue the marriage licenses. That seems like a reasonable accommodation, and is in stark contrast to Yates's instructions to her own staff to follow her lead. Yates wasn't trying to remove herself from a difficult conflict with her religion; she wanted to obstruct the President's decision by hook or by crook, by using the power of the very office whose obligations she was defying. It's that attempt to disengage the power from the limitation on power that makes her approach so dangerous: a private citizen for purposes of freedom of expression, but a state official for purposes of imposing one's will on the public.

The much-reviled "West Wing" TV show was admirable about exploring this problem. There was a character one of whose principal dramatic functions was to bring staff members up short when they tried to exercise their power sub rosa. "You're not elected," he would chide them, meaning that they had not subjected themselves to public scrutiny and the veto of the voters, from whom all legitimate government power ultimate flows. There were discretionary decisions they weren't entitled to make on their own, without direction from their boss, the President, or with Congressional oversight.

Now I'm curious what line I took on Davis; I honestly can't remember.

It's still possible to believe the county, state, or feds were wrong in forcing Davis into that corner, just as it's possible to conclude that Trump's executive order was wrong or unjust (though I don't).

Query whether I'd judge differently about Yates if she'd voluntarily accepted imprisonment rather than either resign or comply with the EO. At the very least, it would have ameliorated the appearance of cost-free grandstanding and virtue-signaling.

Because I don't object to gay marriage, I was trying sort through how I'd analyze the conflict if the order were one I considered truly reprehensible, one that required me to fight with every tool at my disposal. (A wild exaggeration in the context of a 90-day visa freeze pending a review of vetting procedures.) I seemed to be attracted to the idea that Davis might in that context take a stand demanding that someone impeach her or conduct a recall election, rather than resign. An impeachment or recall would have been something like waiting to be fired. But in fact Davis was willing to let the marriage licenses issue as long as her name could be removed from them, thus making it clear they were being officially approved but not personally approved by her. Does this mean I'm applying a sliding scale, depending on how morally clearcut is the opposition to one's new marching orders? Or is Davis's position really different because she was elected? Davis certainly wasn't daring her "boss," whoever that was, to fire her so she could garner some publicity for her opposition to gay marriage, or at least I don't see that she was. She acted like someone reluctantly forced into the spotlight and sorry she couldn't gracefully bow out of the conflict.

At the time, we didn't seem comfortable with Davis's attempt to draw a line between official and personal approval of a marriage license.

More here: http://grimbeorn.blogspot.com/2015/09/it-would-certainly-complicate-agenda.html

"Federal law can never be above Natural Law in my own heart and conscience, but in human institutions it certainly can be. I suspect that Cassandra's right that it must be. It's the only way to get groups of people to coalesce around an understanding of what to be physically and materially bound by."